IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

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1 Filed 8/23/11 In re Kaplan CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR In re JOSHUA SETH KAPLAN, on Habeas Corpus. A (Alameda County Super. Ct. No ) Petitioner Joshua Seth Kaplan, who is serving a 15-years-to-life sentence for second degree murder, challenges a July 2009 decision from the Board of Parole Hearings (the Board) denying parole. We conclude the record does not contain some evidence to support the Board s finding that Kaplan remains a current threat to public safety. We therefore direct the Board to hold a new parole hearing. (See In re Prather (2010) 50 Cal.4th 238, 244.) I. BACKGROUND A. The Commitment Offense Kaplan killed a security guard, Keith Alan Taylor, during the course of a robbery/burglary at a business in Hayward. At Kaplan s parole hearing, the Board read into the record a summary of the crime from a report prepared for the Board in According to that summary: On August 25, 1990, the defendants rented a truck and drove to Kobe... Precision.... Codefendant Gilbert got the guard [Taylor] to open the back door and then shot him in the chest. Kaplan, the other codefendant, then entered the building and Kaplan... shot the guard in the head with a 12-gauge shotgun. He stole a VCR and a computer printer and was planning to take more when they saw a police 1

2 officer drive by and became frightened and left. They were caught when the woman they were living with realized what they were doing and called the police. The same 2005 report included Kaplan s version of the crime, gleaned from a probation interview and a 1998 psychological report. 1 Kaplan had told the psychologist his memory of the crime was blurred because he had taken LSD and methamphetamines on the day of the crime. He saw the security guard lying on the floor when he entered the business. Someone told him to kill the guard and he did as he was told. He raised the gun and fired it. Kaplan admitted to the probation interviewer that this was the most heinous of crimes. Kaplan appeared to blame drug use for the crime ( I believe that it really wasn t me who committed the offense ), but he acknowledged to the interviewer that he took the drugs voluntarily, so I know that doesn t excuse me. Kaplan was 17 years old when he committed the crime. He had left home and was not working or going to school. He had no criminal or juvenile record. Kaplan pled guilty to second degree murder. B. Disciplinary History, Institutional Programming and Parole Plans Kaplan has been disciplinary free during his incarceration. He obtained an Associate of Arts degree through a community college program. In addition to his academic studies, he participated in self-help programs including Alcoholics Anonymous (AA) and Narcotics Anonymous. He also participated in vocational programs and had two job offers. If paroled, Kaplan planned to live with either his sister or his mother. His family set aside money for his living expenses. Kaplan had made arrangements for AA sponsorship and psychological counseling. C Psychological Evaluation Richard Starrett, Ph.D, prepared the most recent psychological evaluation of Kaplan for the Board. The report stated it was an addendum, intended to update the 1 Kaplan declined to discuss the facts of the commitment offense at his July 2009 parole hearing. 2

3 Board on Kaplan s progress. The report referred the Board to earlier psychological reports for questions or concerns regarding background information. Starrett found Kaplan had no current serious mental health problems. He diagnosed Kaplan with polysubstance dependence in a controlled environment remission. Starrett explored Kaplan s understanding of the crime, asking him why it turned violent and what allowed him to take another human being s life. Kaplan stated that his crime partner s plans were violent from the start, and that he (Kaplan) made a bad choice to go along with the plan due to drugs. Kaplan also stated he was trying to impress his crime partner. Starrett asked Kaplan what had changed that would prevent future criminal behavior, and Kaplan responded that he was maintaining his sobriety. Starrett concluded Kaplan s level of psychopathy was in the low range, and that his propensity for violence and general recidivism risks were also in the low range. Starrett believed Kaplan had sufficiently explored the commitment offense and come to terms with the underlying causes (drugs, family turmoil, emotional problems, and a sense of personal detachment). Starrett, however, was unable to say whether concerns over underlying childhood issues expressed in early psychological reports had been resolved. Starrett could point only to Kaplan s positive behavior in prison as indicating Kaplan had no problems at the current time. D. July 2009 Parole Decision The Board cited three reasons for finding Kaplan unsuitable for parole. First, the Board cited the gravity of the commitment offense. The Board believed the crime was atrocious and cruel, and that it demonstrated an exceptionally callous disregard for human suffering. Next, the Board cited Kaplan s unstable social history, to wit his heavy drug use. Finally, the Board was not satisfied with Kaplan s past and present mental state and attitudes toward the crime. The Board noted Kaplan had declined to discuss the commitment offense, so the Board relied on his statements in other documents before the Board. The Board concluded Kaplan had not taken full responsibility for his actions and that he needed to develop insight into what caused him to commit the crime. 3

4 The Board did believe Kaplan was remorseful and it commended him on his institutional adjustment. E. The Superior Court s Order Kaplan filed a petition for writ of habeas corpus in Alameda County Superior Court. The superior court denied the petition, concluding the circumstances of the life crime continued to be predictive of current dangerousness when considered with Kaplan s present mental state. II. DISCUSSION [T]he Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety[.] (In re Lawrence (2008) 44 Cal.4th 1181, 1205 (Lawrence); see Pen. Code, 3041; Cal. Code Regs., tit. 15, 2281, 2402.) Thus, the relevant inquiry for a court reviewing a Board parole decision is whether some evidence supports the Board s conclusion that the inmate constitutes a current threat to public safety. (Lawrence, supra, at p ) If the Board s decision to deny parole is not supported by some evidence, the court should grant the prisoner s petition for writ of habeas corpus and order the Board to vacate its decision. (Id. at p ) The underlying circumstances of the commitment offense alone will rarely provide a valid basis for denying parole after the prisoner has served the suggested base term and demonstrated evidence of rehabilitation. (Lawrence, supra, 44 Cal.4th at p ) Nevertheless, the Board may continue to rely upon the aggravated circumstances of the commitment offense to deny parole when the record also establishes that something in the prisoner s pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner s dangerousness that derive from his or her commission of the commitment offense remain probative of the statutory determination of a continuing threat to public safety. (Id. at p ) Kaplan has been in custody since the day he was arrested in August Thus, at the time of his July 2009 parole hearing, he had served just under 19 years of his sentence. The suggested base term for a second degree murder committed under the 4

5 circumstances of this case ranges from 18 to 20 years. 2 (Cal. Code Regs., tit. 15, 2403(c).) As Kaplan has served at or near his base term, the Board may not continue to rely on the aggravated nature of the commitment offense absent something else in the record that indicates the offense continues to remain probative on the question of dangerousness. A closer look at the two factors the Board cited in addition to the commitment offense in denying parole, fails to persuade us the commitment offense continues to establish Kaplan remains a danger to the public. The first factor, Kaplan s unstable social history is, similar to the commitment offense, a static factor. (See In re Shippman (2010) 185 Cal.App.4th 446, 458 [an unstable social history is an immutable fact].) The Board based its finding of an unstable social history solely on Kaplan s drug use. Kaplan, however, appears to have done everything possible to address his substance abuse problem, from substance abuse programs while incarcerated to creating a relapse plan should he be released. Kaplan admitted at the parole hearing that he had obtained alcohol in county jail after his arrest, but he proclaimed that he had been sober for 15 years. The Board indicated that it believed Kaplan and that it further believed he would continue his substance abuse programs so that he would never slip back again. In short, nothing in the record shows Kaplan will likely be unable to maintain sobriety if paroled. Further, the odds of him remaining sober should be enhanced by the level of financial and family support awaiting him. The other factor the Board relied upon, of course, was Kaplan s mental state or attitude toward the crime. The Board was unsure whether Kaplan had taken full responsibility for the crime, or whether he had adequate insight into the causative factors of his conduct. In its decision, the Board referred to information that Kaplan participated in planning the robbery. The Board also noted that when Kaplan was arrested, an expended shotgun shell was found in his pocket. 2 Given Kaplan s exemplary behavior, the Board would presumably apply postconviction credit to reduce the base term. (See Cal. Code Regs., tit. 15, 2410.) 5

6 The record before us does not confirm either detail, but even if true, neither detail, in light of the whole record, supports a conclusion that Kaplan has not taken responsibility for the crime or lacks insight. Kaplan s expressions of remorse are longstanding and numerous. He stated at the most recent parole hearing that he took full responsibility for Taylor s murder. His exploration into the causes of why he committed the crime substance abuse, youth, turmoil in his family, falling in with the wrong crowd, emotional detachment is well-documented. The psychologist concluded in 2008: The inmate accepts responsibility for the crime as stated in the record. The inmate appears to understand the underlying factors that contributed to the crime. The inmate has had a positive response to treatment, does not have a negative attitude, he does not have any active mental health symptoms, and he is not impulsive. More importantly, Kaplan s failure or inability to fill in a couple of blanks regarding the commitment offense does not show he is a current threat to public safety. This is particularly true in light of the strong evidence of rehabilitation in the record. The Warden s reliance on In re Shaputis (2008) 44 Cal.4th 1241, 1260, is misplaced in this case. The Warden cites Shaputis for the proposition that Kaplan has failed to gain insight into, or an understanding of, his violent conduct. (See id. at p [evidence that prisoner s character remained unchanged and that he lacked insight into his antisocial behavior provided evidence that he remained dangerous].) The life inmate in Shaputis had a history of domestic violence and he continued to claim that the killing of his wife was an accident. This claim, considered with evidence of petitioner s history of domestic abuse and recent psychological reports reflecting that his character remains unchanged and that he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative programming, all provide some evidence in support of the Governor s conclusion that petitioner remains dangerous and is unsuitable for parole. (Ibid., fn. omitted.) 6

7 In contrast, the record here reflects a single, terrible, violent criminal act. 3 Kaplan does not deny it. He does not claim it was an accident. He has attempted to find the causes for it and he appears to have made headway in doing so. There is not some evidence that he fails to take responsibility for the murder of Taylor. The Board has failed to articulate some evidence indicating that Kaplan represents a current threat to public safety if he is granted parole. Therefore, the Board must conduct a new hearing to determine his suitability for parole. (See In re Prather, supra, 50 Cal.4th at p. 244.) III. DISPOSITION The petition for writ of habeas corpus is granted. The Board shall vacate its July 2009 decision finding Kaplan unsuitable for parole and conduct a new parole suitability hearing within 60 days of the issuance of the remittitur in this matter, in accordance with due process of law and consistent with the decision of this court. This opinion shall be final as to this court within 10 days after it is filed. (Cal. Rules of Court, rule 8.387(b)(3)(A).) We concur: SEPULVEDA, J. RIVERA, J. RUVOLO, P. J. 3 As a teenager Kaplan was apparently hospitalized for outbursts of violence and for fear he might hurt himself or someone else. The Board briefly touched on this point at the July 2009 parole hearing but did not explore it. And as noted in section I.C., ante, the psychologist believed consideration of the childhood psychological issues was beyond the scope of his assessment. 7